Friday, January 15, 2010

Into the Closet: NYT Opinion Piece

Has anyone noticed that now that lesbians and gay men have left the closet to assert their equal rights as citizens, their adversaries seem to be running for a closet of their own?

My observation is, of course, prompted by the success that opponents of same-sex marriage had this week in persuading the Supreme Court to bar cameras from the San Francisco courtroom where Proposition 8 is now on trial. That is the amendment that California’s voters added to the state’s Constitution to provide that “only marriage between a man and a woman is valid or recognized in California.”

Judge Vaughn R. Walker of United States District Court for the Northern District of California, presiding over the challenge to Proposition 8 in the non-jury trial that began on Monday, announced last month that the court would provide a live video feed to enable remote viewing elsewhere in the courthouse as well as in federal courthouses in four other cities. He also raised the additional prospect of later posting on YouTube and the Internet. The Proposition 8 defenders, claiming that their witnesses would face harassment if their testimony was broadcast beyond the courtroom, asked the Supreme Court to block the plan. By the familiar vote of 5 to 4, the court quickly complied.

Beyond the ideological divide that the case produced, and the fact that Justice Sonia Sotomayor allied herself in dissent with her three most liberal colleagues, Justices Stephen G. Breyer, John Paul Stevens and Ruth Bader Ginsburg, a public spat between two powerful judicial forces provided another intriguing dimension to this fast-moving dispute.

One was Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, who approved the district court’s remote video plan. The other was the Judicial Conference of the United States, the federal courts’ chief policy-making body, headed by Chief Justice John G. Roberts Jr., who remained in the background as two top conference officials sent Judge Kozinski a coolly worded two-sentence letter “to bring to your attention” the longstanding Judicial Conference policy against televising trials.

Judge Kozinski, long the Peck’s Bad Boy of the federal judiciary, known for flaunting both brilliance and quirkiness, shot back with a reminder of his own — that “like it or not, we are now well into the 21st century.” His six-page letter basically declared that the Ninth Circuit would continue to do what it wanted. To describe the Supreme Court’s subsequent unsigned opinion blocking the video plan as a rebuke of Judge Kozinski would be an understatement.

That intrajudicial melodrama, so delicious that I could not resist describing it, should not obscure the larger canvas against which this episode unfolded. The Proposition 8 backers are far from the only proponents of “traditional marriage” to run for cover after invoking the levers of direct democracy. And the Supreme Court may have just begun to explore the issues raised by this quest for a new application of the old right to privacy.